Buddon Realty Co. v. Wallace
| Decision Date | 16 October 1945 |
| Citation | 189 S.W.2d 1002,238 Mo.App. 900 |
| Parties | Buddon Realty Company, a Corporation of Missouri, and Errol Corporation, a Missouri Corporation, Appellants, v. S. Mayner Wallace, as Administrator d. b. n., c. t. a. of the Estate of Claude A. Lovejoy, Deceased, Respondent |
| Court | Missouri Court of Appeals |
Appellants' Motion for Rehearing Overruled November 13 1945. Certiorari Denied by Supreme Court January 8, 1946.
Appeal from the Circuit Court of the City of St. Louis; Hon. Edward M. Ruddy, Judge.
Affirmed.
Bryan Cave, McPheeters & McRoberts for plaintiffs-appellants.
(1) In construing a lease the court will endeavor to ascertain the intention of the parties as expressed in the language used, from a full survey and rational interpretation of the entire document in the light of all of the surrounding facts and circumstances. St. Louis Union Trust Co. v. Van Raalte, 214 Mo.App. 172, 190, 259 S.W. 1067; Globe Indemnity Co. v. Modern Auto, etc., Co., 285 S.W. 753; Puryear & Meyer Gro. Co. v. Cardwell Bank, 4 S.W.2d 489. (2) There is respectable authority for the proposition that a bequest by a lessee of his leasehold interest to some one other than his executor is a breach of a covenant or condition not to assign the term. 32 Am. Juris. 302; Annotation: 12 Ann. Cas. 978; Annotation: Ann. Cas. 1913B, 890. (3) The provision in the lease that "under no circumstances shall any assignment or transfer of the lease or the leased property or any portion thereof be effectuated by . . . operation of law . . .," effectively prevented a transfer of the leasehold estate to the defendant-respondent. (a) The transfer of title to real or personal property which occurs upon death, whether the title goes to an executor, an administrator, or direct to the heirs, legatees or devisees, is a transfer "by operation of law." Tiffany on Landlord and Tenant, sec. 150, page 906; 32 Am. Juris. 298, 302; Squire v. Learned, 196 Mass. 134, 81 N.E. 880, 11 L. N. S. 634; Francis v. Ferguson, 246 N.Y. 516, 159 N.E. 416, 55 A. L. R. 982; Charles v. Byrd, 29 S.C. 544, 8 S.E. 1; 35 Corpus Juris 981; Annotated Cases 1913B, Note, 980; Schouler, Law of Personal Property, page 23; 55 A. L. R. 985. (b) The words "by operation of law" having a definite legal meaning and effect, parties to the lease will be presumed to have intended them to have such legal meaning and effect in the absence of any contrary intention appearing in the instrument. 12 Am. Juris. 764; Am. Law Inst. Restatement Contracts, sec. 234; Pleadwell v. Missouri Glass Co., 160 Mo.App. 585, 594, 140 S.W. 935. (c) The lease must be so interpreted as to give effect to all of the language and every clause therein, and to render the whole agreement operative, if it can consistently and reasonably be done. 12 Am. Juris. 775. (4) The provision in the lease prohibiting under any circumstances an assignment or transfer by operation of law is a conditional limitation and not a condition subsequent so that the term of the lease expired upon the death of the lessee. Jandrew v. Bouche, 29 F.2d 346; Koss v. United Stores Realty Co., 263 N.Y.S. 474. (5) The acceptance by the lessor of various payments tendered as rent did not constitute a waiver of lessor's rights because (a) The lease had by its terms ended without the necessity of any forfeiture by lessor and could not thus be revived. See cases cited under 4, supra. (b) Each acceptance of payment was accompanied by an express repudiation of the theory that they constituted payment of rent. Gary Realty Co. v. Kelly, 278 Mo. 450, 472-474, 214 S.W. 92; In re Vail, 284 F. 399; Moore v. Risley, 287 F. 10; Sproul v. Help-Yourself Store Co., 16 F.2d 554; Model Dairy Co. v. Foltis-Fischer, 67 F.2d 704; In re Walker, 93 F.2d 281; In re Wil-Low Cafeterias, Inc., 95 F.2d 306; Maxwell v. Provident Mutual Life Ins. Co., 41 P.2d 147; Ardis & Co. v. Sibley, 17 So.2d 321. (6) Under no circumstances may the court authorize defendant-respondent to sell and deliver the alleged unexpired term of the lease to any purchaser if so ordered by the probate court in the administration of the estate. Walker v. Wadley, 124 Ga. 275, 52 S.E. 904; Jackson ex dem. Livingston v. Groat, 7 Cow. (N. Y.) 285; More's Case, Cro. Eliz. pt. 1, p. 26, 78 Eng. Reprint 291.
S. Mayner Wallace for respondent, pro se.
The unexpired term of this leasehold is personal property that passed to respondent as the lessee's administrator. Orchard v. Wright, etc., Store Co., 225 Mo. 414, 125 S.W. 486. (a) Death did not end the lessee's term. The word "death" was not used in the lease. Annotation, 147 A. L. R. 360, 362. The phrase "by operation of law," as used in the lease, was intended simply as a catch-all for only the legal consequences of various insolvencies. Henry v. Excelsior, etc., Bottling Co., 277 Mo. 508, 513, 211 S.W. 9; Haeffner v. A. P. Green Fire Brick Co. (Mo.), 76 S.W.2d 122, 126; Frank v. Dodd (Mo. App.), 130 S.W.2d 210, 215; J. E. Blank, Inc., v. Lennox Land Co., 351 Mo. 932, 174 S.W.2d 862; Francis v. Ferguson, 246 N.Y. 516, 55 A. L. R. 982; Squire v. Learned, 196 Mass. 134, 11 L. R. A. (N. S.) 634, 81 N.E. 880. The lessee's large investment in the lease, including his initial purchase and subsequent expenditures, argues powerfully against the construction thereof contended for by appellants. Appellants in their notice of forfeiture and their amended petition did not assert that the lease was personal to the lessee in the sense that death ended the leasehold. The lease was not as "personal" as appellants now contend. The fact that the lease does not mention the heirs and personal representatives of the lessee, or the successor of the lessors, is of no legal significance; the law implies those words. Chitty & Parsons on Contracts, as quoted in 300 U.S. 31, 35; Francis v. Ferguson, 246 N.Y. 516, 55 A. L. R. 982. (b) Appellants have waived and are estopped from asserting any alleged forfeiture. Mutual Drug Co. v. Sewall (Mo.), 182 S.W.2d 575; Shirley's "Leading Cases in the Common Law" (3rd Eng. Ed.) 104; Garnhart v. Finney, 40 Mo. 449; Bobb v. Frank L. Talbot Theatre Co. (Mo.), 221 S.W. 372; Eurengy v. Equitable Realty Corp., 341 Mo. 341, 107 S.W.2d 68; Panas v. Bopp (Mo. App.), 16 S.W.2d 654; Crouch v. Wabash, etc., Ry. Co., 22 Mo.App. 315; Mansur v. Chamberlin, 162 Mo.App. 155, 144 S.W. 510; Board of Trade Co. v. Shannon Grain Co., 223 Mo.App. 1199, 21 S.W.2d 913; Bauer v. White, 225 Mo.App. 270, 29 S.W.2d 176; Frank v. Dodd (Mo. App.), 130 S.W.2d 210; Wollard v. Schaffer Stores Co., 272 N.Y. 304, 5 N.E.2d 829. (c) The appellants' criticism of a provision of the judgment in the trial court: Orchard v. Wright, etc., Store Co., 225 Mo. 414, 125 S.W. 486; Elms Realty Co. v. Wood, 285 Mo. 130, 136, 142, 225 S.W. 1002; Francis v. Ferguson, 246 N.Y. 516, 55 A. L. R. 982.
This is an appeal by plaintiffs from a judgment dismissing their petition and sustaining defendant's counterclaim for a declaratory judgment.
The plaintiff Errol Corporation is the owner of the fee simple title to land located at Eleventh and Pine streets, in the city of St. Louis, on which is erected the Majestic Hotel. The plaintiff Buddon Realty Company is the lessee of the said property under a ninety-nine year lease from the said Errol Corporation.
The evidence shows that under date of February 18, 1939, the Buddon Realty Company leased the said hotel property, together with the furnishings, furniture, and equipment, to Claude A. Lovejoy, for a term of fifteen years, beginning on the first day of March, 1939, and ending on the last day of February, 1954, at a monthly rental of $ 1,250 per month during the first five years, $ 1,500 per month during the next five years, and $ 1,750 per month during the last five years of said term. The lease further provided that the lessee, on or before the last day of February, 1939, should deposit $ 5,000 with the lessor, which amount should be spent by the lessee for the improvement and furnishing of the lobby floor, and any part of such fund not so spent should be expended by the lessee for furnishings, fixtures, or improvements in other portions of the hotel. The lease also provided that during the first year of the lease the lessee should either contract for or expend $ 25,000 for furnishings, equipment, improvements, and rehabilitation; that for the following five years, the lessee should spend $ 5,000 per year, and thereafter until the end of the term $ 2,500 per year, for the same purpose. The lease further provided that as and when the substituted items were paid for, that those that had been replaced should become the property of the lessee; but, at the termination of the lease, by breach or otherwise, all furniture, furnishings, and replacements that represent the replacements should belong to the lessor. However, the lease further provided that "any personalty replaced by the furniture or furnishings that the Lessee so procures shall be preserved intact and shall belong exclusively to the Lessor until such time, when and if the substituted furniture and furnishings have been paid for in full and receipt exhibited to the Lessor, at which time the title to this furniture and equipment that has been so replaced will be vested in the Lessee." The lease also provided that when furnishings and equipment were purchased, the lessee would, prior to their installation, furnish written instruments signed by the vendors in which said vendors agreed not to look to the lessor for payment. The lessee also agreed to pay for all necessary repairs on the inside and on the outside of the said building, except repairs to the roof, gutters, downspouts, and walls.
Other provisions of the lease material to the...
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